Is society evolving on community covenants, or just the Court?

National Post, 5 July 2018

There are more such pledges these days, not fewer, such as the Liberal party's commitment to abortion. So why was Trinity Western penalized?

Ten days before Canada Day, Canada’s new Supreme Court chief justice, Richard Wagner, gave an unusual press conference. Most unusual, in that judges don’t usually do that sort of thing. Indeed, generally they go out of their way not to publicly comment on the passing scene. But, according to Wagner, the court is now in the vanguard of promoting democracy at home and protecting it abroad, so even absent any pressing urgency, he thought it would be good for Canadians to know his mind.

Observing the court’s central role in Canadian governance under the Charter of Rights and Freedoms, Wagner said, “We are able to interpret the Charter along the way, given the evolution of society.”

It’s an odd metaphor. The theory of evolution works by random mutation and natural selection, meaning that most novelties — mutations — are found harmful and die off. It’s only after a long period of testing by nature, red in tooth and claw, that a mutation’s usefulness is known.

Our Supreme Court is not that patient. A few weeks back it ruled that the law societies of British Columbia and Ontario were justified in refusing to accredit a future law school at Trinity Western University. TWU is a Christian institution that requires its students to adhere to a “community covenant.” That covenant restricts sexual activity to traditional marriage, which the law societies held was unfair to potential homosexual students. Given that the community covenant is about much more than sex, it really came down to the law societies objecting to TWU for not equating traditional marriage with gay marriage.

Way back in 2001, the Supreme Court ruled 8-1 that the B.C. government had violated TWU’s religious liberty when it refused to accredit its teachers’ college. But evolution works faster at the court than in nature, so 17 years later the court ruled 7-2 against TWU. The court agreed that TWU’s religious liberty was being violated but not to such an extent that the court was going to do anything about it.